Congress Seeks to Shed Light on Border Surveillance

Thanks to a strong legislative push from Senator Patrick Leahy (D-VT) and a little help from CDT, the United States government will be compelled to disclose to Congress and the public information about electronic device searches conducted at the border, due to mandated reporting obligations attached to the spending bill signed into law December 21, 2019. This remarkable win for transparency and accountability will arm Congress with information that should inform further action and oversight on this issue. Currently, the U.S. government claims the authority to search electronic devices, including cell phones and laptops, at the border without a warrant. In recent years the number of these searches has grown significantly, from 5,085 devices in 2012 to around 33,000 devices in 2018. Courts are assessing the appropriate scope and level of predication needed for these searches, but adequate protections for travelers are still a long ways away. Electronic devices can contain the “privacies of life”, and the international border is a uniquely vulnerable place for travelers. 

The Substance of the Reporting

The reporting obligations will compel Customs and Border Protection (CBP) and other government entities including Immigration and Customs Enforcement (ICE) to disclose figures illustrating how the government wields its discretion at ports of entry, which kinds of people are targeted for these searches, and how data seized from devices are shared throughout the U.S. government and potentially with foreign entities.

Specifically, CBP must make publicly available within the next two months and annually thereafter the following instances in which CBP: 

• accessed the digital contents of any electronic equipment belonging to or in possession of a U.S. citizen at the border; 
• accessed the digital contents of any electronic equipment in possession of a non-citizen at the border; 
• detained an individual for refusing to disclose or provide consent to access the digital contents of any electronic equipment in the possession of an individual at the border, 
• the length of time such individual was detained by the Department.

Additionally, within the next two months and annually thereafter, CBP must collect and make publicly available the following information: 

• The total number of U.S. persons (U.S. citizens and lawful permanent residents) for which a Governmental entity (including ICE) obtained access to the digital contents of electronic equipment belonging to or in the possession of the United States person at the border; 
• the total number and nationality of non-citizens for which a Governmental entity obtained access to the digital contents of electronic equipment;
• aggregate data regarding the race and ethnicity of individuals for whom a Governmental entity obtained access to the digital contents of electronic equipment belonging to or in the possession of an individual at the border; 
• the number of times CBP searches an electronic device at the request of a Federal, State, local, or foreign governmental entity, including another component of the Department, or discloses to such entity information from any searched device.

Armed With Information, Congress May Be Motivated To Act

While news reporting and legal challenges about particular cases have surfaced the invasive nature of these searches, and the coercive nature of ports of entry, the public and Congress have limited aggregated information about electronic device searches at the border. Customs and Border Protection, to its credit, made publicly available the number of device searches it conducted in Fiscal Years 2016 and 2017, and an Inspector General audit of CBP’s border searches published in 2018 revealed additional statistical data about device searches. (The audit also highlighted that border agents struggle to comply with CBP policy and the Constitution.)  However, this data has not been updated, and CBP is not the only entity that conducts these searches. ICE Homeland Security Investigations (ICE-HSI) conducts many searches for CBP and for its own investigations. Our friends at the ACLU and EFF revealed, through discovery in their pending legal challenge to this practice, that ICE does not keep track of the searches they conduct. 

There is a need for more information about how the government exercises its discretion at the border, to better understand the experiences of travelers. The figures the government reports may reveal a pattern of subjecting certain races or nationalities to device searches, and may reveal that people are subject to lengthy detention if they do not unlock their device. Furthermore, we will learn how frequently other agencies task CBP to conduct a search on their behalf, thereby using the border as an end run around the Fourth Amendment’s warrant standard. Activists, journalists, lawyers, business travelers, students, returning families and many others have been forced to undergo these invasive digital searches as a condition of travel. There is a pressing need for Congress to pass legislation affording travelers greater protection at the border and we applaud this reporting language as a significant step in the right direction.